Who broke the law, Snowden or the NSA?

By J. Kirk Wiebe

Updated 12:21 PM ET, Wed December 18, 2013

Photos: NSA leaker Edward Snowden15 photos

NSA leaker Edward Snowden – National Security Agency leaker Edward Snowden poses with German Green party parliamentarian Hans-Christian Stroebele in Moscow on October 31. Stroebele returned from the meeting with a letter from Snowden to German authorities, which was distributed to the media. In it, Snowden said he is confident that with international support, the United States would abandon its efforts to "treat dissent as defection" and "criminalize political speech with felony charges."

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Photos: NSA leaker Edward Snowden15 photos

NSA leaker Edward Snowden – Snowden's refugee document granted by Russia is seen during a news conference in Moscow on August 1. Snowden slipped quietly out of the airport after securing temporary asylum in Russia, ending more than a month in limbo.

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NSA leaker Edward Snowden – Sen. Charles Schumer, D-New York, leaves a last-minute news conference at the U.S. Capitol after Russia announced that it would grant Snowden temporary asylum on August 1. "Russia has stabbed us in the back, and each day that Mr. Snowden is allowed to roam free is another twist of the knife," he said.

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NSA leaker Edward Snowden – Snowden's father, Lon Snowden, who has adamantly supported his son, talks to reporters in Washington on Tuesday, July 30. He has urged his son to remain in Russia "until we have assurances that he would receive a fair trial."

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NSA leaker Edward Snowden – Demonstrators in Berlin hold a protest march on Saturday, July 27, in support of Snowden and WikiLeaks document provider Bradley Manning. Both men have been portrayed as traitors and whistle-blowers. Manning was acquitted on July 30 on the most serious charge of aiding the enemy, but he was convicted on several other counts and likely faces a lengthy term in a military prison.

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NSA leaker Edward Snowden – Russian lawyer Anatoly Kucherena, center, speaks with journalists at the Sheremetyevo International Airport in Moscow after meeting with Snowden on Wednesday, July 24. Kucherena said he was in daily contact with Russian authorities about securing permission for Snowden to leave the airport.

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NSA leaker Edward Snowden – Snowden meets with human rights activists and lawyers on July 12 in a transit zone of the Russian airport. It was his first public appearance since he left Hong Kong on June 23. He announced that he was seeking refuge Russia while awaiting safe passage to Latin America, where he has been offered asylum.

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NSA leaker Edward Snowden – Russian President Vladimir Putin attends a meeting in Prokhorovka on July 12. Russian officials said Snowden abandoned his effort to seek asylum in the country after Putin warned that he would have to stop leaking information about U.S. surveillance programs if he wanted to stay.

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NSA leaker Edward Snowden – A woman burns American flags during a protest in support of Bolivian President Evo Morales in front of the U.S. embassy in Mexico City on July 4. Leftist Latin American leaders and activists were fuming after some European nations temporarily refused Morales' plane access to their airspace amid suspicions Snowden was aboard.

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NSA leaker Edward Snowden – Bolivian President Evo Morales holds a news conference at the Vienna International Airport on July 3. He angrily denied any wrongdoing after his plane was diverted to Vienna and said that Bolivia is willing to give asylum to Snowden, as "fair protest" after four European countries restricted his plane from flying back from Moscow to La Paz.

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NSA leaker Edward Snowden – Umbrellas with slogans are lined up before a protest march to the U.S. consulate in Hong Kong on June 15. Snowden was hiding in Hong Kong, where he arrived on May 20 before blowing the lid off the NSA surveillance operation.

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NSA leaker Edward Snowden – Protesters in Hong Kong shout slogans in support of Snowden on June 13. The NSA leaker vowed to fight any bid to extradite him from Hong Kong.

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NSA leaker Edward Snowden – Graffiti sympathetic to Snowden is stenciled on the sidewalk in San Francisco on June 11.

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NSA leaker Edward Snowden – An American flag flutters in front of the U.S. consulate in Hong Kong on June 10.

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NSA leaker Edward Snowden – Snowden outs himself on June 9 in the British newspaper The Guardian, which published details of his revelations about the NSA electronic surveillance programs. "I have no intention of hiding who I am because I know I have done nothing wrong," he said in a video interview.

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Story highlights

Kirk Wiebe: Edward Snowden is entitled to amnesty in the U.S. without fear of incarceration

Wiebe: Snowden reported surveillance of Americans that violated the Constitution

But for some, whether to give Snowden amnesty is not an easy matter to reconcile. After all, they say, he broke laws in divulging classified information.

Indeed, some say he is a traitor. But just as a member of the U.S. military is not required to follow an unlawful order, it is proper that an employee of the United States intelligence community -- NSA, CIA, DIA and others -- should report any information that concerns law-breaking by the intelligence agencies or their employees.

J. Kirk Wiebe

An NSA official's suggestion that amnesty for Snowden could possibly be put on the table was undoubtedly welcome news for Snowden, yet NSA Director Gen. Keith Alexander rejected the suggestion.

But how can anyone believe that Snowden would not be deserving of amnesty? Clearly it is the government and its senior officials who committed the crime -- people who took oaths to defend the Constitution from enemies both foreign and domestic and who failed to take to heart the words they swore to uphold. Indeed, Snowden did not -- nor does any government employee -- swear allegiance to the president of the United States, or even to the secretary of Defense or the director of NSA. No, he swore to uphold and defend the Constitution.

Unfortunately, while federal law protects whistleblowers who work in other government sectors from reprisals for truth-telling and have paths for reporting wrongdoing and mismanagement, those who work in intelligence are expressly denied such rights. When Senior Staff Representative Diane Roark and longtime senior NSA employees Bill Binney, Ed Loomis, and I submitted a formal complaint about mismanagement at the agency, the government's response on July 26, 2007, was to send the FBI to raid our homes, searching them for seven hours and seizing our computers, phones and other digital media. We are just now getting our property back after having successfully sued the government in December 2012.

The government even indicted Tom Drake, although it dropped its criminal charges in the case against him. Still, for the five of us, it was the equivalent of a punch in the face and a warning to other would-be "truth-tellers" not to report wrongful government activities or the government will come after you.

Snowden clearly saw what the government does to whistleblowers who try to work within government to fix things that are wrong. He knew that our complaint to the United States Department of Defense inspector general in September 2002 went for naught. Although the report agreed that our complaint was well-founded, nothing happened -- no one was found guilty of wrongful behavior or waste of hundreds of millions of taxpayer dollars.

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Even before writing the complaint, we -- all longtime and senior NSA employees -- along with Diane Roark, a senior staffer on the House Permanent Select Subcommittee on Intelligence, had approached Congress in 2001 about the matter of illegal collection of data about U.S. citizens. No action. Snowden might have known that we were ultimately punished by approaching officials, and even had our security clearances revoked when the FBI raided our homes -- despite the fact that four of the five of us were not indicted and none of us was found guilty of committing a crime.

For employees in the business of intelligence, there are no honest brokers, no viable paths to follow to report the subverting of the U.S. Constitution. It is the reason Snowden went first to Hong Kong and ultimately Moscow to seek refuge. He did not go to those places to give away national secrets, rather he needed a place to stay that was safe from extradition and where he could wait while the United States sorted through the facts, especially those regarding government leaders who violated the most basic of our nation's laws -- the right to privacy.

It was shocking to see the interview on MSNBC a few years ago with the former director of NSA, Michael V. Hayden, and hear him redefine the Fourth Amendment of the U.S. Constitution. When asked whether NSA had violated the Fourth Amendment, Hayden said it had not. Hayden said "probable cause" was not the Fourth Amendment's standard for violating a citizen's privacy -- it was based on "reasonable suspicion."

Recognizing that the whole matter of secret presidential orders and extreme interpretations of the Constitution in regard to executive wartime authorities by the U.S. Department of Justice could be the subject of a book by themselves, one thing is clear -- no one asked either the Supreme Court or the people of the United States whether bulk collection of citizens' phone metadata was constitutional. As we saw on Monday, Judge Richard Leon does not think so.

In recent days, Hayden defended the actions of both the Bush and Obama administrations, stating that the NSA collection program was "blessed" by all three branches of the U.S. government.

What Hayden has not said is that neither the Foreign Intelligence Surveillance Court nor Congress had a good understanding of what was going on. The NSA contends it provided Congress with the opportunity to be briefed on the surveillance, but some members of Congress dispute that. Snowden's revelations since June have certainly made it clear that no one -- except the NSA -- believes they had the whole truth about the extensiveness of its data collection efforts, whether from the Internet or from the phone system.

Perhaps more germane to this discussion whether Snowden should receive amnesty and the matter of who committed the real crime -- Snowden or the government -- is that the legal basis for NSA in defending its actions can be found in a single court case called Smith v Maryland (1979) -- which went to the Supreme Court at a time when there was hardly an internet and nobody even dreamed there would be cell phones, social network sites or Twitter.

In this case, touted by the government as legitimizing the bulk collection of metadata under Section 215 of the Patriot Act, the police inserted a recording device at the telephone company to record the metadata -- phone number originating the call, time of call, number called and duration of conversation -- associated with a man suspected of robbing a lady. The alleged thief challenged the constitutionality of the police recording the metadata associated with the phone call, but the Supreme Court backed the lower court's decision that doing so under the circumstances was constitutional.

Now, one might ask how does the Supreme Court's approval of the collection of metadata associated with a single phone call made by a suspected thief end up authorizing the bulk collection of phone metadata of hundreds of millions of American citizens by the most powerful spy agency in the world? We all know that the field of law has its quirks, but it's clear such an interpretation of law does not constitute justice, let alone make sense.

With those facts as background, I think most Americans would agree that Edward Snowden deserves amnesty. In fact, it is those who allowed these programs to be implemented and developed over the past 12 years who should be prosecuted. After all, do we not stand for "equal justice for all"?